Document:-
A/CN.4/424 and Corr.1
Fourth report on relations between States and international organizations (second part of
the topic), by Mr. Leonardo Díaz-González, Special Rapporteur
Topic:
Status, privileges and immunities of international organizations, their officials, experts,
etc.
Extract from the Yearbook of the International Law Commission:-
1989, vol. II(1)
Dowloaded from the web site of the International Law Commission
(http://www.un.org/law/ilc/index.htm)
Copyright © United Nations
RELATIONS BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS
(SECOND PART OF THE TOPIC)
[Agenda item 8]
DOCUMENT A/CN.4/424*
Fourth report on relations between States and international organizations (second part of the
topic), by Mr. Leonardo Diaz Gonzalez, Special Rapporteur
[Original: English/Spanish]
[24 April 1989]
CONTENTS
Page
Note
153
Section
I.
II.
Paragraphs
INTRODUCTION
1-5
154
6-11
154
DISCUSSION OF THE TOPIC IN THE SIXTH COMMITTEE AT THE FORTY-SECOND SESSION OF THE
GENERAL ASSEMBLY
III.
NOTION OF AN INTERNATIONAL ORGANIZATION
12-18
155
IV.
PART I OF THE DRAFT ARTICLES: ARTICLES I TO 4 SUBMITTED BY THE SPECIAL RAPPORTEUR
19-21
156
LEGAL CAPACITY OF INTERNATIONAL ORGANIZATIONS
22
157
PART II OF THE DRAFT ARTICLES: ARTICLES 5 AND 6 SUBMITTED BY THE SPECIAL RAPPORTEUR
23
157
PRIVILEGES AND IMMUNITIES ACCORDED TO INTERNATIONAL ORGANIZATIONS
24-116
157
A.
Immunity from legal process: basis
24-33
B.
Classification of international organizations
34-49
158
C.
Scope of immunity from legal process
50-76
160
V.
VI.
VII.
VIII.
157
D.
Waiver of immunity from legal process
77-78
163
E.
Property, funds and assets
79-87
163
F.
Inviolability of property and premises
88-116
163
117
167
PART III OF THE DRAFT ARTICLES: ARTICLES 7 TO 11 SUBMITTED BY THE SPECIAL RAPPORTEUR
NOTE
Multilateral conventions cited in the present report:
Source
Convention on the Privileges and Immunities of the United
Nations (New York, 13 February 1946)
United Nations, Treaty Series, vol. 1, p. 15.
Convention on the Privileges and Immunities of the Specialized Agencies (New York, 21 November 1947)
Ibid., vol. 33, p. 261.
Vienna Convention on Diplomatic Relations (Vienna, 18
April 1961)
Ibid., vol. 500, p. 95.
Vienna Convention on Consular Relations (Vienna, 24
April 1963)
Ibid., vol. 596, p. 261.
•Incorporating document A/CN.4/424/Corr. 1.
153
154
Documents of the forty-first session
Vienna Convention on the Law of Treaties (Vienna, 23
May 1969)
Ibid., vol. 1155, p. 331.
Vienna Convention on the Representation of States in
their Relations with International Organizations of a
Universal Character (Vienna, 14 March 1975) (hereinafter "1975 Vienna Convention on the Representation
of States")
United Nations, Juridical Yearbook 1975 (Sales No.
E.77.V.3), p. 87.
I.
Introduction
1. The Special Rapporteur submitted his third report
on "Relations between States and international organizations (second part of the topic)" 1 to the International
Law Commission at its thirty-eighth session, in 1986.
2. The Commission considered the third report at its
thirty-ninth session, from the 2023rd to 2027th meetings
and at the 2029th meeting.2
3. In his third report, the Special Rapporteur analysed
the debates on the topic in the Sixth Committee at the
fortieth session of the General Assembly and in the Commission at its thirty-seventh session and drew a number
of conclusions from those debates. Similarly, he set out
a number of considerations regarding the scope of the
Yearbook . . . 1986, vol. II (Part One), p. 163, document A/CN.4/
401.
See Yearbook . . . 1987, vol. I, pp. 187 el seq.
II.
topic and submitted to the Commission, in compliance
with its request, an outline of the subject-matter to be
covered by the draft articles the Special Rapporteur
intended to prepare on the topic.
4. After hearing the Special Rapporteur's introduction,
the Commission held an exchange of views on various
aspects of the topic, such as the scope of the future draft,
the relevance of the outline submitted by the Special
Rapporteur and the methodology to be followed in the
future.
5. Further to the exchange of views, the Commission
decided to request the Special Rapporteur to continue his
study of the topic in accordance with the guidelines laid
out in the schematic outline contained in his third report
and in the light of the opinions expressed on the topic
during the debate at the Commission's thirty-ninth
session.
Discussion of the topic in the Sixth Committee at the forty-second
session of the General Assembly
6. During the forty-second session of the General
Assembly, the Sixth Committee discussed the Commission's work on the topic.3 A first remark that should be
made is that several representatives, stressing the role
played by international organizations, emphasized the
relevance and importance of the topic. They welcomed
the work of the Commission thereon and approved of the
Commission's request that the Special Rapporteur
should continue his study of the topic in accordance with
the guidelines laid out in the schematic outline contained
in his third report and in the light of the exchange of
views in the Commission. These representatives generally
found the outline approved by the Commission to be a
good beginning and an adequate basis for further work.
national organizations and the guarantees given to their
officials, and that the outline provided by the Special
Rapporteur should be expanded so as to include the
capacity of and means at the disposal of international
organizations for defending their officials' immunities, in
accordance with the relevant jurisprudence of the ICJ. It
was pointed out in this connection that the draft under
consideration should include the duty of the host country
to ensure legal protection and respect for the status,
privileges and immunities of the organizations and their
officials so as to make it impossible for the host country
to take restrictive measures of a discriminatory nature
against officials of an international organization, as had
been the case in certain States.
7. As regards the general approach to be adopted, the
remark was made that the future draft, instead of being
confined to the existing legal regime, should endeavour to
remedy the shortcomings of that regime, thus providing
a better basis for the privileges and immunities of inter-
8. Support was expressed for the methodology adopted
by the Commission, which combined the codification of
existing rules and practice with the identification of
lacunae. Both were viewed as useful undertakings which
should be seen as complementary rather than mutually
exclusive.
3
See "Topical summary, prepared by the Secretariat, of the discussion in the Sixth Committee on the report of the Commission during the
forty-second session of the General Assembly" (A/CN.4/L.420),
sect. E.
9. With regard to the scope of the topic in terms of the
organizations to be covered, the general view was that
only international organizations of a universal character
Relations between States and international organizations (second part of the topic)
should be included. Regional organizations could be
dealt with at a later stage.
10. On the concept of an international organization, it
was stated that, while no useful purpose would be served
by embarking on a new definition, since the definition
contained in the 1975 Vienna Convention on the Representation of States was still adequate, the Commission
should consider the question of the international personality of international organizations. In this connection, the view was expressed that draft article 1, presented
by the Special Rapporteur in his second report,4 was
somewhat narrowly conceived: it was said in particular
that the words "to the extent compatible with the instrument establishing them" appeared to be restrictive and
4
Yearbook . . . 1985, vol. II (Part One), pp. 112-113, document
A/CN.4/391 and Add.l, para. 74.
III.
5
Ibid., pp. 105-107, paras. 15-30.
Ibid., para. 15.
that subparagraphs (a), (b) and (c) of paragraph 1 gave
the impression that international organizations could
have no other attributes than the ones mentioned in those
subparagraphs. The words "under the internal law of
their member States" were queried on the ground that
such internal law was hardly relevant. On the other hand,
support was voiced for the Special Rapporteur's
proposal that paragraph 2 of the draft article should be
made a separate article, subject to the addition of the
words "and by international law" at the end of the
paragraph.
11. The General Assembly, on the basis of the report
of the Sixth Committee, adopted resolution 42/156 of
7 December 1987, in paragraph 3 of which it recommended that the Commission should continue its work
on the topics in its current programme. That recommendation was reiterated by the Assembly at its forty-third
session, in resolution 43/169 of 9 December 1988.
Notion of an international organization
12. The Special Rapporteur dealt with the question of
the notion of an international organization in his second
report;5 accordingly, he will refer to what was said in that
report on the subject.
13. The Special Rapporteur noted in his second report
that virtually all the members of the Commission who
had spoken during the debate on his preliminary report
had taken the view that it did not seem appropriate to try
to work out and propose a precise definition of what an
international organization was, particularly since the
Commission's task was not to draw up a treaty on such
organizations. The Special Rapporteur was asked "to
avoid protracted discussions of a doctrinaire, theoretical
nature".6
14. Following a series of comments, he reached the
conclusion that he should continue to follow the pragmatic approach adopted during the discussion of three of
the drafts formulated by the Commission, each of which
is now a convention, namely the drafts on the topics
"Law of treaties", "Representation of States in their
relations with international organizations of a universal
character" (the first part of the topic now under consideration) and "Treaties concluded between States and
international organizations or between international
organizations".
15. Article 2, paragraph 1 (/), of the draft articles
on treaties concluded between States and international
organizations or between international organizations
gives the term "international organization" a definition
identical with that in article 2, paragraph 1 (/), of the
1969 Vienna Convention on the Law of Treaties. It
simply identifies an international organization as an
intergovernmental organization. In paragraph (14) of the
commentary to article 2 of the draft articles on the law of
6
155
treaties, the Commission stated that the term "international organization" was defined in paragraph 1 (/) as
an intergovernmental organization "in order to make it
clear that the rules of non-governmental organizations
are excluded".7
16. In paragraphs (7), (8) and (9) of the commentary to
article 2 (adopted on first reading) of the draft articles
on treaties concluded between States and international
organizations or between international organizations,
the Commission also stated, with regard to paragraph 1 (i):
(7) . . . This definition should be understood in the sense given to it
in practice: that is to say, as meaning an organization composed mainly
of States, and in some cases having associate members which are not yet
States or which may even be other international organizations; some
special situations have been mentioned in this connexion, such as that
of the United Nations within ITU, EEC within GATT or other international bodies, or even the United Nations acting on behalf of Namibia,
through the Council for Namibia, within WHO after Namibia became
an associate member of WHO.
(8) It should, however, be emphasized that the adoption of the
same definition of the term "international organization" as that used in
the Vienna Convention has far more significant consequences in the
present draft than in that Convention.
(9) In the present draft, this very elastic definition is not meant to
prejudge the regime that may govern, within each organization, entities
(subsidiary or connected organs) which enjoy some degree of autonomy
within the organization under the rules in force in it. Likewise no
attempt has been made to prejudge the amount of legal capacity which
an entity requires in order to be regarded as an international organization within the meaning of the present draft. The fact is—and we shall
revert to this point in the commentary to article 6—that the main
purpose of the present draft is to regulate, not the status of international
organizations, but the regime of treaties to which one or more international organizations are parties. The present draft articles are intended
to apply to such treaties irrespective of the status of the organizations
concerned.8
7
Yearbook. . . 1966, vol. II, p. 190, document A/6309/Rev. 1, part II,
chap. II.
8
Yearbook . . . 1974, vol. II (Part One), pp. 295-296, document
A/9610/Rev. 1, chap. IV, sect. B; previously cited in the Special Rapporteur's second report (Yearbook . . . 1985, vol. II (Part One), p. 106,
document A/CN.4/391 and Add.l), para. 25.
Documents of the forty-first session
156
17. The Special Rapporteur therefore believes that, for
the purposes of the present draft articles, the Commission should maintain its position that an "international
organization" means an intergovernmental or inter-State
organization.
18. Further, in accordance with the views expressed in
IV.
the discussions in both the Commission and the Sixth
Committee of the General Assembly, we should, for the
time being, confine ourselves to organizations of a universal character, taking account of the reservations expressed during those discussions and indicated in the
Special Rapporteur's second report.
Part I of the draft articles: articles 1 to 4 submitted by the Special Rapporteur
19. Part I of the draft articles would read as follows:
[Convention] applicable in whole or in part to international
organizations other than those referred to in paragraph 1
of this article.
PART I.
INTRODUCTION
Article 1.
Terms used
1. For the purposes of the present articles:
(a) "international organization" means an intergovernmental organization of a universal character;
(b) "relevant rules of the organization" means, in particular, the constituent instruments of the organization, its
decisions and resolutions adopted in accordance therewith
and its established practice;
(c) "organization of a univeral character" means the
United Nations, the specialized agencies, the International
Atomic Energy Agency and any similar organization
whose membership and responsibilities are of a world-wide
character;
(d) "organization" means the international organization in question;
(e) "host State" means the State in whose territory:
(i) the organization has its seat or an office; or
(ii) a meeting of one of its organs or a conference
convened by it is held.
2. The provisions of paragraph 1 of this article regarding the use of terms in the present articles are without
prejudice to the use of those terms or to the meanings which
may be given to them in other international instruments or
the internal law of any State.
Article 2.
Article 3. Relationship between the present articles
[Convention] and the relevant rules of
international organizations
Scope of the present articles
1. The present articles apply to international organizations of a universal character in their relations with States
when the latter have accepted them.
2. The fact that the present articles do not apply to
other international organizations is without prejudice to
the application of any of the rules set forth in the articles
which would be applicable under international law independently of the present articles [Convention].
3. Nothing in the present articles [Convention] shall
preclude the conclusion of agreements between States or
between international organizations making the article'
The provisions of the present articles [Convention] are
without prejudice to any relevant rules of the organization.
Article 4. Relationship between the present articles
[Convention] and other international agreements
The provisions of the present articles [Convention]:
(a) are without prejudice to other international agreements in force between States or between States and international organizations of a universal character; and
(/>) shall not preclude the conclusion of other international agreements regarding the privileges and immunities
of international organizations of a universal character.
20. Two earlier comments need to be repeated here.
First, the Commission, it will be recalled, reached the
conclusion that, for the purposes of its initial work on the
second part of the topic, it should adopt a broad outlook,
inasmuch as the study should include regional organizations, and that the final decision on whether to include
such organizations in a future codification could be taken
only when the study was completed.9 Secondly, as has
been pointed out, the other terms that may be used in the
draft articles will be defined when work on the topic has
been concluded.
21. Finally, it is worth noting that the 1975 Vienna
Convention on the Representation of States, which dealt
with the first part of the present topic, was confined to
international organizations of a universal character, but
a reservation was made, in article 2, paragraph 2, of the
Convention, to the effect that the limitation of the scope
of the Convention to the representation of States in their
relations with international organizations of a universal
character did not preclude the application to the relations
of States with other organizations of any of the rules set
forth in the Convention which would be applicable under
international law independently of the Convention.
9
Yearbook . . . 1983, vol. II (Part Two), p. 80, para. 277 (c).
Relations between States and international organizations (second part of the topic)
V.
157
Legal capacity of international organizations
22. The Special Rapporteur dealt in his second report with the legal capacity of
international organizations and presented a draft article 1, which was later divided
into draft articles 1 and 2.10 The discussion in both the Commission and the Sixth
Committee indicated a widespread feeling that paragraph 2 of the proposed article 1
should be made a separate article, with the addition, at the end, of the words "and
by international law". It seems unnecessary to add anything else to what was said in
the second report.
See footnote 4 above.
VI.
23.
Part II of the draft articles: articles 5 and 6 submitted
by the Special Rapporteur
Part II of the draft articles would read:
PART II.
LEGAL PERSONALITY
Article 5
International organizations shall enjoy legal personality under international law
and under the internal law of their member States. They shall have the capacity, to the
extent compatible with the instrument establishing them, to:
(a) contract;
(b) acquire and dispose of movable and immovable property; and
(c) institute legal proceedings.
Article 6
The capacity of an international organization to conclude treaties is governed by the
relevant rules of that organization and by international law.
VII.
A.
Privileges and immunities accorded to international organizations
Immunity from legal process: basis
24. It is undeniable that, in order to guarantee the
autonomy, independence and functional effectiveness of
international organizations and protect them against
abuse of any kind, and because national courts are not
always the most appropriate forum for dealing with
lawsuits to which international organizations may be
parties, some degree of immunity from legal process in
respect of the operational base of each organization must
be granted.
25. The arguments put forward in support of the
immunity of States from legal process, which are similar,
by and large, to those cited in the case of international
organizations, might suggest that the rules applicable to
States can also be applied to international organizations.
26. A substantial number of authors consider that too
rigid a parallel between the jurisdictional immunities of
States and those of international organizations is not
warranted, since the reasons advanced for granting
immunity are not the same in the two cases. It is not
clear, to begin with, that the immunities which States
need and the immunities which international organizations need have to be of equal scope. The Special Rapporteur believes that the right approach is to consider
what degree of immunity from legal process ought to be
158
Documents of the forty-first session
granted to a given international organization in the light
of its functional requirements."
27. If the raison d'etre of an international organization
is the functions and purposes for which it was set up,
those functional requirements must be one of the main
criteria, if not the only one, used in determining the
extent and range of the privileges and immunities that are
to be accorded to a given organization. The independence of the organization will thus be safeguarded to the
extent necessary for it to perform its functions and
accomplish its objectives.
28. Justification for the privileges and immunities
granted to international organizations can also be found
in the principle of equality among an organization's
member States. As international organizations are the
creation of States which are equal among themselves,
those States must all be on an equal footing vis-a-vis the
organization they have set up and belong to. In particular, no State should derive unwarranted fiscal advantages from the funds put at an organization's disposal.
29. Precedent has been a factor in defining the
privileges and immunities of international organizations.
For understandable practical reasons, the privileges
granted in the past to a number of similar organizations
have been a useful reference point in considering the
question of what privileges and immunities to grant to a
new organization.
30. As soon as the first international bodies were set up,
it became apparent that there was a need to afford them
some protection against local State authorities, particularly judges and executive officials, capable of interfering with their operation. International organizations,
lacking territory of their own, have to be based in the
territory of a State.
31. Originally, the privileges and immunities were
granted to officials or representatives of such bodies,
generally by assimilating them to diplomatic personnel.
Very soon, given the rapid growth of international organizations, a new doctrine prevailed. This well founded
doctrine provided a justification for granting privileges
and immunities to international organizations which was
independent of and different from that established in
relation to States.
32. International organizations enjoy privileges and
immunities motu proprio, being granted them in conventions, headquarters agreements, or possibly by custom,
in their capacity as international legal persons, as
subjects of international law. They are entitled to
privileges and immunities and can require them of States.
One basic difference in relation to States concerns reciprocity. The different nature of the parties precludes
international organizations from offering equivalent
benefits in exchange for the privileges and immunities
1
' See, in particular, the report prepared for the Council of Europe
in 1968 by the Sub-Committee on Privileges and Immunities of International Organisations and Persons connected with Them, as revised and
completed by the European Committee of Legal Co-operation: Council
of Europe, Privileges and Immunities of International Organisations,
Resolution (69) 29 adopted by the Committee of Ministers of the
Council of Europe on 26 September 1969 and explanatory report
(Strasbourg, 1970), p. 23, para. 31.
accorded to them. As Christian Dominice puts it:
None of the conventions on the privileges and immunities of such
organizations, the headquarters agreements especially, would make any
sense if the organizations lacked international juridical personality.
This is not to say, however, that immunities are a necessary attribute
of such personality. They derive from the specific rules prescribing
them . . ,12
33. Being unable to enjoy the protection conferred by
territorial sovereignty, as States can, international
organizations have as their sole protection the immunities granted to them. The ample immunity afforded
them is fully justified, in contrast to the increasingly
restricted immunity of States, for the good reason that
States are political entities pursuing their own interests
while international organizations are service agencies
operating on behalf of all their member States.13
B.
Classification of international organizations
34. Before going further, the question should be considered, as it was in the case of the definition of an
international organization, whether it is possible, and
above all whether it is necessary and desirable, to embark
on a classification of such organizations, in other words,
whether it would be useful to divide international organizations into categories with a view to determining what
privileges and immunities should be given to them in
each case.
35. The classifications proposed by legal writers are
very varied. In general, the sole purpose of such classifications is to facilitate the enumeration of existing
organizations. This is readily understandable. As already
stated,14 each organization has its own characteristics
according to the functions assigned to it by the legal
instrument whereby it was created. While some international organizations have common features, they also
have a variety of distinguishing features, depending on
the purpose for which they were established by the will of
States.
36. Given these circumstances, any attempt at classification can only result in the identification of types of
international organizations, which is more of a systematization than a mere theoretical description. Given the
wide variety of functions entrusted to international organizations, as has been observed, any classification will
necessarily be inadequate.
37. The classification of international organizations
most frequently used in legal doctrine is based on the
following criteria: (a) composition; (b) purpose of
activity; and (c) powers.15
38.
In classifications made on the basis of composition,
12
C. Dominice, "L'immunite de juridiction et d'execution des organisations internationales", Collected Courses of The Hague Academy
of International Law, 1984-IV (Dordrecht, Martinus Nijhoff, 1985), vol.
187, p. 164.
13
Ibid., pp. 178 et seq.
14
See the Special Rapporteur's second report {Yearbook . . . 1985,
vol. II (Part One), p. 107, document A/CN.4/391 and Add.l), para. 32.
15
See P. Reuter, International Institutions (New York, Rinehart,
1958), pp. 219 et seq.; M. Virally, "Definition and classification of
international organizations: A legal approach", in G. Abi-Saab, ed.,
The Concept of International Organization (Paris, UNESCO, 1981),
pp. 50 et seq.
Relations between States and international organizations (second part of the topic)
a distinction is drawn between organizations which have
a universal vocation and regional organizations. The first
are difficult to define. None of the international organizations is totally universal. Because they are built on a
voluntaristic basis, it is always possible for some States to
refrain from membership in them. Even the phrase
"which have a universal vocation", which emphasizes the
fact that the universality is only virtual, is not entirely
satisfactory. This is because it does not cover an organization such as the World Bank which, being founded on
economic principles, cannot allow the States that reject
those principles ever to become members. Regional organizations are easier to define in terms of composition.
But there is a third category of international organizations which has no place in this dualistic classification:
that of organizations which do not have a universal
vocation and which are not established on a regional
basis, such as, for instance, OPEC, OECD and the
various councils and boards responsible for primary
commodities.
39. In classifications made on the basis of the^purpose
of the activity, a distinction is frequently made between
political organizations and technical organizations—or
between general organizations and specialized organizations—depending on the organization's sphere of competence. Other authors go further and distinguish between
political, economic, financial, social, cultural, administrative, military and other organizations. There is no
limit to this purely descriptive list, which is, in fact, an
enumeration rather than a real classification.
40. In classifications made on the basis of powers, a
distinction is drawn between consultative, standardsetting and executing organizations, depending on
whether or not they are empowered to take decisions that
are binding on their members and whether or not they
can themselves carry out their decisions. From a legal
point of view, this is a more promising distinction.
However, this, too, is not entirely satisfactory. Considered from the standpoint of the binding force of
decisions taken, for example, the United Nations
General Assembly would appear to be a consultative
body, because its resolutions have the force merely of
recommendations, whereas the Security Council would
be deemed to be a standard-setting body, because it can
take binding decisions.16
41. The best approach would be to try to establish a
more systematic (or scientific) classification on the basis
of a characteristic of international organizations that is
as typical as possible but, at the same time, varies significantly from one organization to another.17 As has
already been pointed out, it is an organization's function
that constitutes its true raison d'etre. It is in order that it
may perform this function that its member States have
established it and take part in its operation, bearing the
costs and accepting the constraints that inevitably derive
therefrom. The organization's structure is itself subordinate to the requirements of its function.
42. Existing international organizations almost all
conform to a single model operating at three levels:
16
17
See Reuter, op. cit., pp. 219 et seq.; Virally, loc. cit., pp. 58-59.
See Virally, loc. cit., pp. 59 et seq.
159
(a) At the highest level, the plenary intergovernmental
organ;
(b) At the lowest level, the administrative secretariat;
and
(c) At the intermediary level, the plenary intergovernmental organ (in organizations composed of only a small
number of States) or the limited intergovernmental organ
(in the case of world-wide organizations).
43. This general pattern is complicated by a number of
adjuncts that vary considerably according to the nature
of the functions assigned to the organization in question,
the circumstances with which it has to cope, the direction
given to its activities and so forth. Obviously, it is extremely difficult, if not impossible, to reduce this multiplicity of institutional elements to a few well defined and
significant types.
44. This having been said, and given the functional
approach which the Commission has adopted as the
principal basis for this study, the function of international
organizations, as a principle of classification, can be
considered principally from three points of view:
(a) According to the extent of the co-operation that it
is the organization's mission to bring about;
(b) According to the scope of the field of action
reserved for or assigned to such co-operation; and
(c) According to the means used to effect such cooperation and the type of relations instituted between the
organization and its members and between the members
themselves.
45. Using the first criterion, a distinction would be
drawn between universal or world-wide, or even global,
organizations and organizations whose membership is
restricted. The aim of world-wide organizations is, of
course, to bring about the unification of the international
community by grouping within themselves all the States
that make up that community and by seeking to solve the
problems that arise at a planetary level. Organizations of
limited membership seek to promote co-operation
among a particular group of States only, restrictively
defined on the basis of specific interests which they all
share and which distinguish them from the rest of the
international community. In a sense, it may be said that
organizations of a universal character are founded on the
principle of inclusion, whereas organizations of limited
membership are founded on the principle of exclusion.
The distinction between these two types of organization
not only concerns the number of members and the rules
relating to their admission but also entails a whole series
of consequences in regard to the establishment of the
system of organs, its relations with member States, the
purpose of its work and the whole of its activities.
46. The second criterion would give rise to a distinction
between general international organizations and sectoral
international organizations. The first category is made up
of international organizations established to allow organized co-operation in all fields in which such co-operation may appear useful, without any limitation, or excluding only certain clearly defined sectors (for example,
national defence). These general international organizations may, like the United Nations, be set up on a worldwide basis, or, like OAS or OAU, on a regional basis. The
second category is made up of international organizations which are assigned a function limited to a single
160
Documents of the forty-first session
sector of activity, or at least to a set of strictly defined
sectors.
47. In the case of the third criterion, the distinction
would be between standard-setting international organizations and operational international organizations.
Standard-setting organizations are principally concerned
with orienting their members' attitudes to prevent their
becoming conflictual (or, if that has already happened, to
end the conflict) and with assisting the attainment of
common objectives through the co-ordination of efforts.
However, the methods used to achieve those ends may
differ from one organization to another. Operational
organizations take action themselves, using their own
resources or resources made available to them by their
members, but of which they determine the utilization and
therefore have the operational management. It is true
that, in most cases, the resources used by international
organizations derive from their member States, but the
situation differs considerably according to whether these
resources have been definitively transferred to the organization (as in the case of financial contributions) or
are simply supplied to it on an ad hoc basis (as in the case
of military contingents).
48. The activities engaged in by some international
organizations are almost entirely operational. This is true
of the financial institutions and especially of the international banks such as the World Bank. The activities of
others combine both standard-setting and operational
elements, as in the case of the United Nations (whose
activity remains primarily of a normative kind) and most
of the specialized agencies (with the exception of the
financial institutions).
49. In the light of the above, the only conclusion is that
none of the proposed classifications can by itself provide
a general criterion for determining what privileges and
immunities should be accorded to international organizations. It is not possible to make a clear distinction
between the various categories. At times these categories
overlap. Finally, as stated earlier, it is more an enumeration than a classification as such. It is not possible to
establish in a precise manner that from a simple classification drawn up on the basis of the criteria enumerated
one can derive automatically and for each category of
international organization specific and clear-cut legal
consequences.
C.
Scope of immunity from legal process
50. It would therefore seem that, aside from the difficulties involved in drawing up a list of the privileges and
immunities that would be equally applicable to all international organizations, it would not be desirable to draw
up such a list, since each international organization has
its own characteristics, in accordance with the instrument
establishing it, and, consequently, for the fulfilment of its
aims and specific functions, a specific and well defined
number of privileges and immunities, which do not have
to be, and generally are not, the same as those required
by another international organization with different aims
and functions.
51. In view of the difficulty of defining the general
principles or criteria on the basis of which it would be
possible automatically to grant a particular international
organization a specific set of privileges and immunities,
any norm that is elaborated in this connection must
contain general provisions capable of being supplemented
or modified according to the specifics of each individual
case, so that it may be adjusted to the true functional
needs of the international organization concerned,
in keeping with the legal instrument establishing the
organization.
52. The general agreements on the privileges and immunities of international organizations (the 1946 Convention on the Privileges and Immunities of the United
Nations and the 1947 Convention on the Privileges and
Immunities of the Specialized Agencies,18 for example)
are generally supplemented by a headquarters agreement
or by a bilateral or multilateral agreement in which the
privileges and immunities accorded to a specific international organization are defined, limited or expanded.
This formula tends to harmonize the interests of the
international organizations and those of States, irrespective of whether a State is host to one or more international
organizations.
53. A look at the relevant conventions and at the headquarters agreements and other bilateral and multilateral
legal instruments currently in effect shows that a number
of criteria have been used, in a more or less general
fashion, in granting privileges and immunities to existing
international organizations. These criteria are as follows:
(a) The geographical area for which the international
organization is responsible;
(b) The political character of the international organization;
(c) The type of functions assigned to the international
organization: commercial, financial or even industrial;
(d) The size of the international organization; this is
logical, since certain privileges and immunities which are
necessary or essential in the case of a large international
organization may be omitted without creating major
difficulties in the case of a small international organization whose functions are limited.
54. Lastly, it should not be forgotten that there are
certain international organizations to which it may not
be necessary to grant privileges and immunities, even if
they have been established by an agreement between
States. This would be true of intergovernmental international organizations established in such a form that they
can function exclusively as legal entities under the
domestic law of the host State.
55. The United Nations General Assembly itself, in its
resolution 22 D (I) of 13 February 1946, pursuant to
which the 1947 Convention on the Privileges and Immunities of the Specialized Agencies was drawn up and
adopted, included a paragraph reading as follows:
While recognizing that not all specialized agencies require all the
privileges and immunities which may be needed by others, and that
certain of these may, by reason of their particular functions, require
privileges of a special nature which are not required by the United
Nations itself, the General Assembly considers that the privileges and
immunities of the United Nations should be regarded, as a general rule,
as a maximum within which the various specialized agencies should
enjoy such privileges and immunities as the appropriate fulfilment of
18
Hereinafter referred to as the "General Conventions of 1946 and
1947".
Relations between States and international organizations (second part of the topic)
their respective functions may require, and that no privileges and immunities which are not really necessary should be asked for*.
56. Thus the only criterion which is preponderant and
appears in general form, both in legal doctrine and in
legal instruments of a multilateral, bilateral or unilateral
nature, and in the practice followed by the United
Nations and other existing international organizations, is
that of functional necessity. This, therefore, is the main
criterion which the Commission adopted at the outset of
this study.
57. In any event, it should be borne in mind that:
(a) Privileges and immunities constitute a right not a
courtesy;
(b) They are intimately bound up with the functions of
the international organization to which they are
accorded;
(c) They should not be used to nullify the grounds on
which they were granted and to challenge justice.
This point will be dealt with in connection with the
privileges and immunities of international staffmembers.
58. According to most existing texts (conventions on
privileges and immunities, headquarters agreements and
so forth), international organizations cannot be judged
by any court of ordinary law unless they expressly waive
that privilege. Even if they do so, their waiver cannot be
extended to measures of execution.
59. Although this exceptional situation may seem excessive, it is expressly limited by the obligation imposed
on international organizations to institute a judicial
system for the settlement of conflicts or disputes in which
they may become involved. This obligation is enshrined
in all the existing headquarters agreements, such as the
Agreement between WHO and Switzerland19 (art. 23)
and the Agreement between UNESCO and France20
(art. 28). The General Conventions of 1946 and 1947
contain similar provisions (art. VIII, sect. 29, and art. IX,
sect. 31, respectively). A more explicit provision is to be
found in the General Agreement on Privileges and Immunities of the Council of Europe,21 which, in article 21,
refers to arbitration.
60. In their replies to the questionnaire sent by the
Legal Counsel of the United Nations to the specialized
agencies and IAEA on 13 March 1978 and to the regional
organizations on 5 January 1984, in accordance with
decisions of the Commission,22 most of the specialized
agencies and IAEA stated—as had the United Nations
—that their immunity from legal process had been fully
respected and recognized by the competent national
authorities.23
19
Agreement of 29 September 1955 (see Switzerland, Recueil systematique du droit federal (Berne, 1970), sect. 0.192.120.281).
20
Agreement of 2 July 1954 (United Nations, Treaty Series, vol. 357,
P- 3).
21
Council of Europe, The General Agreement on Privileges and
Immunities of the Council of Europe of 2 September 1949 (Strasbourg
[n.d.]).
22
See Yearbook . . . 1977, vol. II (Part Two), p. 127, para. 95; and
Yearbook . . . 1983, vol. II (Part Two), p. 81, para. 277 ( / ) .
23
See "The practice of the United Nations, the specialized agencies
and the International Atomic Energy Agency concerning their status,
privileges and immunities: supplementary study prepared by the Secretariat" {Yearbook ... 1985, vol. II (Part One/Add.1), p. 145,
document A/CN.4/L.383 and Add. 1-3).
161
61. The inference from the replies was that the principle
of immunity of international organizations from legal
process had been strengthened. In that connection, it is of
interest to quote the following from the summary of
practice relating to the status, privileges and immunities
of the United Nations:
(a) Recognition of the immunity of the United Nations
from legal process
11. The United States of America became a party to the Convention on the Privileges and Immunities of the United Nations on 29 April
1970. This accession strengthened the legal position of the United
Nations with regard to immunity from legal process in the United
States, which until that time had been based on domestic legislation and
general international law derived, in particular, from Articles 104 and
105 of the United Nations Charter. This action was all the more
significant for the Organization as it came at a time when the doctrine
of sovereign immunity was undergoing a rapid evolution. A more
restrictive doctrine was being developed in many countries, culminating
in the enactment of national legislation such as the United States
Foreign Sovereign Immunities Act of 1976. Although not directly
applicable to international organizations, the changing doctrine of
sovereign immunity and in particular the more restrictive approach to
the commercial activity of foreign sovereigns will inevitably have an
impact on the way national courts view the activities of international
organizations. The United Nations, however, has continued to enjoy
unrestricted immunity from legal process and has experienced no particular difficulties in this regard, unlike other organizations which do
not enjoy the same legal protection under agreements in force.24
62. Because a court situated in the host country of the
United Nations, and hence important, is concerned, it is
of particular interest to quote the decision of the New
York County Supreme Court in the Matter of Menon
(1973). The estranged wife of a non-resident United
Nations employee was challenging the refusal of Family
Court judges to order the United Nations to show cause
why her husband's salary should not be sequestered to
provide support for herself and her minor child. The
application was dismissed by the Supreme Court, which
declared that "the law specifically exempts a sovereign*
from the jurisdiction of [the United States] courts, unless
the sovereign consents to submit itself". The Court
further held that the United Nations "holds sovereign*
status and may extend that protection over its agents and
employees" and that "the sovereign status of the United
Nations, concerning its personnel and its financial
agents, is beyond this or the Family Court authority to
challenge".25 The opportunity to comment on this
decision will arise when the privileges and immunities of
officials are discussed.
63. Lastly, another relevant example is the ruling in the
case of Manderlier v. United Nations and Belgian State
(1966), before a Brussels court of first instance. The
plaintiff had instituted proceedings with a view to obtaining compensation from the United Nations or the
Belgian Government, or from both jointly, for damage
he claimed to have suffered "as the result of abuses
committed by the United Nations troops in the Congo".
The Court dismissed the proceedings in so far as they
pertained to the United Nations on the ground that the
Organization enjoyed immunity from every form of legal
24
Ibid., p. 161, part A, chap. II, sect. 7, para. 11.
See United Nations, Juridical Yearbook 1973 (Sales No. E.75.V. 1),
p. 198; cited in document A/CN.4/L.383 and Add. 1-3, part A, chap. II,
sect. 7, para. 12.
25
162
Documents of the forty-first session
process under section 2 of the 1946 Convention on the
Privileges and Immunities of the United Nations.26
64. The specialized agencies and IAEA resort to arbitration to settle any dispute that may be submitted to
them in respect of private individuals under ordinary
law.27 Purchase contracts with suppliers generally
contain an arbitration clause.
65. In addition, the specialized agencies have established and are under the jurisdiction of an ad hoc administrative tribunal which has competence to judge disputes
that may arise between them and their staff members.
66. Technical assistance contracts drawn up between
the specialized agencies and States and co-operation
agreements concluded between those agencies or between
them and the United Nations generally contain an arbitration clause. The constituent instruments of those organizations provide for possible recourse to the ICJ for
an advisory opinion should there be a dispute regarding
the interpretation or application of one of the provisions
of the aforementioned legal instruments.
67. Some international organizations of a financial
character are willing to be sued before a national tribunal
in certain circumstances. This is the case, as laid down in
their articles of agreement, of IBRD (art. VII, sect. 3),
IFC (art. VII, sect. 3) and IDA (art. VIII, sect. 3).
However, no judicial action can be brought against them
by member States or by persons acting for or deriving
claims from such States. The property and assets of the
three institutions, wherever they may be situated, are
immune from all forms of seizure, attachment or execution in the absence of a final judgment.
68. The replies to the questionnaire sent out to the
executive heads of the specialized agencies and IAEA by
the United Nations Legal Counsel on 13 March 1978
indicate that the immunity of the majority of the specialized agencies and IAEA from legal process has been
fully recognized by the competent national authorities.
69. In proceedings instituted against ILO and IMF,
immunity from legal process has always been recognized.28 Various actions have been brought against FAO
despite the existence of international agreements
granting FAO immunity from legal process. FAO
contests the jurisdiction of local courts in actions brought
against it. The judgments of the courts of the host
country, Italy, do not recognize FAO's immunity even
though the headquarters agreement29 refers to
"immunity from every form of legal process". The Italian
courts endeavour to draw a distinction by claiming that
FAO's immunity from legal process extends only to
matters which relate to activities undertaken in carrying
out the purpose and functions of the organization, i.e.
acts jure imperil, and not to transactions of a private law
26
See United Nations, Juridical Yearbook 1966 (Sales No. E.68. V.6),
p. 283; cited in document A/CN.4/L.383 and Add. 1-3, part A, chap. II,
sect. 7, para. 13.
27
See document A/CN.4/L.383 and Add. 1-3, part B, chap. I,
sect. 1, para. 9.
28
Ibid., part B, chap. II, sect. 7, para. 43.
29
Agreement of 31 October 1950 (see United Nations, Legislative
Texts and Treaty Provisions concerning the Legal Status, Privileges and
Immunities of International Organizations, vol. II (Sales No. 61.V.3),
p. 187).
nature which may arise out of other activities, i.e. jure
gestionis. In any event, no measure of execution has been
sought against FAO. Clearly, the FAO governing bodies
disagree with that interpretation and maintain that the
provisions of the headquarters agreement should be
given their full literal meaning. Otherwise, both FAO and
other international organizations would be open to litigation detrimental to effective implementation of their
programmes.30 Consideration may be given to the possibility of seeking an advisory opinion of the ICJ as to the
interpretation of the relevant provisions of the headquarters agreement.
70. In other proceedings instituted against FAO, extrajudicial settlements have been reached. In some cases,
execution of the judgment has not been sought.
71. IBRD, IDA and IFC do not enjoy general
immunity from suit. Their immunity is limited to actions
brought by member States or persons acting for or
deriving claims from such States. Other persons may
bring actions only in a court of competent jurisdiction in
the territory of a member State in which the organization
has an office, has appointed an agent for the purpose of
accepting service or notice of process or has issued or
guaranteed securities. No cases have been reported by
IBRD, IDA or IFC in which their limited immunity has
not been recognized.
72. Regarding the application of immunity "from every
form of legal process" under article III, section 4, of the
1947 Convention, most specialized agencies and IAEA
reported no special difficulties over interpretation of that
provision. IMF has taken the view that the term is to be
interpreted broadly and thus extends to the exercise of all
forms of judicial power.31
73. It is of interest to note that the United States
Foreign Sovereign Immunities Act of 1976 provides expressly that the property of international organizations
designated by the President of the United States (IBRD,
IDA and IFC are among the organizations designated)
"shall not be subject to attachment or any other judicial
process impeding the disbursement of funds to, or on the
order of, a foreign State as the result of an action brought
in the courts of the United States or of the States".32
74. There have been no cases in which the question of
immunity from measures of execution has been addressed. FAO reported, however, that the representative
of the host country had made a declaration at the session
of the FAO Council held in November 1984 on the
agency's immunity from legal process and measures of
execution in the host country.
75. In that declaration, the said representative drew the
distinction alluded to earlier (see para. 69 above) which
the Italian courts make between actsywre imperii and acts
jure gestionis but stated that "if someone attempted to
carry out measures of execution against FAO . . . the
organization would have to appear before the judge in
30
See document A/CN.4/L.383 and Add. 1-3, part B, chap. II,
sect. 7, para. 48 (b).
31
Ibid., para. 52.
32
Ibid., para. 53.
Relations between States and international organizations (second part of the topic)
order to point out the existence of its immunity under . . .
the Headquarters Agreement".33
76. In view of that limitative interpretation of the
words "every form of legal process" used in its headquarters agreement, FAO considers and maintains that
those words also cover immunity from measures of
execution.
D.
Waiver of immunity from legal process
77. There have been a few cases of agencies waiving
their immunity from legal process. Thus, for example,
IMF has waived its immunity for the purpose of leases.
Bearer notes associated with certain IMF borrowing
agreements provide waiver by IMF of its immunity from
judicial process and the submission to designated
national courts with respect to both actions and execution. UPU has recognized the jurisdiction of Swiss
tribunals when faced with litigation cases.34
78. Furthermore, as stated above (para. 64), most of
the contracts entered into by the specialized agencies and
IAEA provide for settlement of any disputes by arbitration.
E.
Property, funds and assets
79. If we start from the principle that the international
organizations possess juridical personality, it is readily
apparent that the status or regime which is to be
accorded to the property of an international organization
may be viewed as a logical extension of the rights which
that personality entails.
80. One of the prerequisites for the satisfactory performance by an international organization of the functions
for which it was established is, as already stated, the
enjoyment of absolute autonomy. However, it is difficult
to conceive of such autonomy unless the international
organization is recognized as having the right to dispose
of its own resources.
81. Without an appropriate instrument for action,
without the means to be able to act and without the
necessary material support, the international organizations would be unable to perform the tasks conferred on
them by their constituent and other legal instruments.
The resources of the organization provide all of this. In
the first place, the resources help to give permanency to
the organization in its specific vocation of achieving a
particular goal.
82. The resources of international organizations can be
compared to the resources of public persons in the sense
that they are assigned exclusively to the fulfilment of the
organization's purposes, hence the principle of the intangibility and inalienability of the resources of international
organizations.35
83. Clearly, these characteristics do not belong to international organizations alone; they are also to be found in
public services of municipal or international law. The
principles of inalienability of property and fiscal
immunity have as their sole purpose the preservation of
the resources of public entities so as to ensure that
services are maintained on a continuous basis.36
84. According to Jean Duffar, assignment justifies in
municipal law the non-diversion of the property of public
institutions from their function; it explains above all the
inalienability of the public domain.37 The property of
international organizations also benefits from a protective law by being assigned to a collective end. The general
principle may even be adjusted to favour international
organizations, since domain implies ownership, while the
property of international organizations is protected even
when it is not owned by them.
85. All the texts relating to the privileges and immunities of international organizations contain an
express reference to premises and buildings. The 1961
Vienna Convention on Diplomatic Relations provides, in
article 22, paragraph 3, that
the premises of the mission, their furnishings and other property
thereon and the means of transport of the mission shall be immune
from search, requisition, attachment or execution.
The General Conventions of 1946 and 1947, the headquarters agreements between the United Nations and the
United States of America38 and between the United
Nations and Switzerland,39 among others, contain
similar provisions.
86. This seems logical. Even when, without a shadow of
a doubt, the premises and buildings of international
organizations are governed by the general regime applicable to property, it is obvious that, without the premises
and buildings, the activities of an organization would be
not only impeded but almost impossible to carry out.
Hence the enormous and particular importance accorded
to them by means of a special legal regime.
87. The property of an international organization as a
whole, according to the practice of States and the legal
instruments relating to the various international organizations (constituent instruments, headquarters
agreements, conventions, etc.), is considered outside the
scope of ordinary property law. The permanent assignment of such property to institutional ends helps to
prevent them from being put to a use other than the one
intended. They are therefore granted a public law regime,
which makes them immune from alienation and attachment.
F.
Ibid., para. 54.
Ibid., para. 55.
35
See J. Duffar, Contribution a ietude des privileges et immunites des
organisations internationales (Paris, Librairie generate de droit et de
jurisprudence, 1982), p. 235.
34
Inviolability of property and premises
88. A most important privilege, and one which, in the
practical life of international organizations, is essential to
36
Ibid.
Ibid., p. 237.
38
Agreement of 26 June 1947 (United Nations, Treaty Series,
vol. 11, p. 11).
39
Interim Arrangement of 11 June and 1 July 1946 (ibid., vol. 1,
p. 163), amended by exchange of letters of 5 and 11 April 1963 (ibid.,
vol. 509, p. 308).
37
33
163
164
Documents of the forty-first session
their full functioning, is the privilege relating to the inviolability of an organization's premises. It is the principle which vouchsafes an international organization its
autonomy, its independence and its privacy. The principle
is, of course, embodied in almost all the legal instruments
relating to the privileges and immunities of the international organizations, whether in the two General Conventions of 1946 and 1947 or in the headquarters agreements or other bilateral or multilateral agreements
relating to existing international organizations.
89. The inviolability of the premises of international
organizations in international law is, in respect of
content, identical to the inviolability of diplomatic
premises as expressed in article 22, paragraph 1, of the
1961 Vienna Convention on Diplomatic Relations.
However, the principles on which that content is based
are different in the two cases. States respect the inviolability of diplomatic premises on the basis of the principle
of sovereign equality and reciprocity. In the case of
international organizations, one cannot speak of reciprocity; it does not exist. The basis must be sought in the
fact that a national, subordinate legal order cannot
demand submission of or coerce an international, higher
legal order.40
93. When entering into an agreement with a host State
regarding permanent installations, such as those in New
York or Geneva or the headquarters of the regional
economic commissions, the United Nations has sought
to define, either in the headquarters agreement itself or in
a supplementary agreement or annex, the precise limits of
the area in which its premises are situated or over which
it has control.43
94. Inviolability, as understood thus, in a broad and
universal sense, is not always accepted. In particular,
States in whose territory some international organizations have their headquarters tend to limit it. A report
prepared in 1968 for the European Committee on Legal
Co-operation recognized the principle that the premises
of an international organization must be inviolable but
pointed out that at first glance inviolability of the
premises did not seem necessary in the case of international organizations that exercised purely administrative
or technical functions and that, in certain cases, inviolability of archives might be sufficient. The said Committee
agreed that premises should be understood as including
"the land, buildings and parts of buildings, by whomsoever owned, used exclusively for the exercise of the official
functions of the organization*""l.44
90. In the case of the first international organizations to
be established, mention was made of "exterritoriality" in
justification of inviolability. Thus, for example, in the
agreements concluded by the Swiss Federal Government
with some of the international organizations which have
their headquarters in Switzerland, that term was used. In
such agreements, the Swiss Federal Council recognizes
the exterritoriality of the grounds and buildings of the
organization and of all buildings occupied by it in connection with meetings of its assemblies or any other
meeting convened by it in Switzerland (art. 4 of the
agreements signed with, among others, ILO, WHO and
WMO).
95. This same limitation was discussed in the Commission at the tenth session, in 1958, when the draft articles
on diplomatic intercourse and immunities (on which the
1961 Vienna Convention was based) were being discussed. At that time, one of the members of the Commission, Mr. Tunkin, opposed the addition of the word
"official" since, in his view, "the mission's premises were
the premises used for the functions of the mission"; the
addition "would merely lead to confusion and might be
interpreted as implying that only the offices of the
mission were to be regarded as official premises".45
Nevertheless, the 1963 Vienna Convention on Consular
Relations adopted that wording in article 31, paragraph
2, which limits the inviolability to "that part of the
consular premises which is used exclusively for the
purpose of the work of the consular post".
91. This theory has been virtually abandoned. The inviolability of the premises of an international organization depends not on an assumed fiction of exterritoriality
or extraterritoriality (which, as stated, is an obsolete
doctrine) but on the right of every international organization to the respect and inviolability of its privacy.
This is a right inherent in personality.41
92. The earliest agreements referred only to "premises
of the Organization". The latest agreements clarified the
term and, of course, the content of the privilege without,
however, modifying its scope. Thus article 1 (/) of the
1961 Vienna Convention on Diplomatic Relations
reflects the Commission's view, expressed during the
elaboration of the Convention, that "the premises
comprise, if they consist of a building, the surrounding
land and other appurtenances, including the garden and
car park". 42 The Vienna Convention states in effect: "The
'premises of the mission' are the buildings or parts of
buildings and the land ancillary thereto . . . used for the
purposes of the mission . . .".
40
Duffar, op. cit., p. 101.
Ibid., pp. 51 et seq.
42
See Yearbook . . . 1958, vol. II, p. 95, document A/3859, chap. II,
sect. II, para. (2) of the commentary to article 20 of the draft articles
on diplomatic intercourse and immunities.
41
96. Although the tendency to limit and differentiate
inviolability has strong supporters, there is at least one
case in which a court, the Court of Justice of the
European Communities, confirmed the theory of universal and uniform inviolability when it ruled that the
premises and buildings of the European Atomic Energy
Community were not limited to the administrative
premises alone and that therefore "an intervention . . . by
a national administrative authority in the sphere of
interest of a Community institution constitutes an administrative measure of constraint". 46
43
See "The practice of the United Nations, the specialized agencies
and the International Atomic Energy Agency concerning their status,
privileges and immunities: study prepared by the Secretariat"
(Yearbook . .. 1967, vol. II, p. 229, document A/CN.4/L. 118 and Add. 1
and 2, part two, A, chap. II, para. 99).
44
See Council of Europe, op. cit. (footnote 11 above), p. 27, paras.
44-45.
45
See Yearbook . . . 1958, vol. I, p. 128, 455th meeting, para. 68.
46
Case 2.68, Ufficio Imposte di Consumo di Ispra v. Commission of
the European Communities, order of 17 December 1968, Reports of
Cases before the Court of Justice of the European Communities, 1968
(Luxembourg), p. 437; cited in Duffar, op. cit. (footnote 35 above),
p. 102.
Relations between States and international organizations (second part of the topic)
97. The 1961 Vienna Convention on Diplomatic
Relations embodies, in article 1 (/), another of the basic
characteristics of inviolability in international law,
namely that inviolability protects, not ownership, but
occupancy of the premises. Thus the words "irrespective
of ownership" are used. Similar wording is to be found
in the General Conventions of 1946 and 1947 (art. II,
sect. 3, and art. Ill, sect. 5, respectively), which indicates
that the same principles are applied to international organizations.47
98. In the first study prepared by the Secretariat, in
1967, there is the following very apt comment:
While the Vienna Convention of course does not apply to international
organizations, it is indicative of the fact that no distinction is made in
the inviolability of those premises which are owned and those premises
which are rented or otherwise held on a more temporary basis. In this
respect it is declaratory of existing international law.48
99. Clearly, the principle as enunciated in the form
adopted by the 1961 and 1963 Vienna Conventions,
namely as protection of the occupancy, implies the existence of two precise moments: the moment from which
inviolability is applicable and required and the moment
at which it ceases to be so. The first moment is determined by the beginning of the effective occupation of the
premises by the international organization. The second is
determined, logically, by the vacation of the premises by
the international organization which occupied them. The
1975 Vienna Convention on the Representation of States
adopted this principle in article 70, concerning the protection of premises, property and archives, paragraph 1
of which provides: "When the meeting of an organ or a
conference comes to an end, the host State must respect
and protect the premises of the delegation so long as they
are used by it . . .".
100. The legal literature is almost unanimous in recognizing that all the principles on diplomatic inviolability
are applicable to the premises of international organizations. The practice followed by States confirms this. Such
inviolability depends on the use of the premises for the
purposes of the international organization and the
effective occupancy of the premises by the international
organization.
101. However, there seems to be a lacuna in relation to
the precise determination of the two moments indicated
above: the beginning and the end of inviolability. This is
due to the absence in the majority of the legal instruments regulating relations between States and international organizations that are currently in force of a
procedure establishing obligatory notification at both the
moment of occupation and the moment of vacation of
the premises or any other space occupied by an international organization. Such notification should of course
be made to the competent authorities of the host State.
The United Nations, for example, sends an official notification to the authorities of the host country when it
occupies or vacates certain premises.
102. Such obligation has been provided for in article 3
of the Harvard Law School draft convention concerning
47
See P. Cahier, Le droit diplomatique contemporain (Geneve, Droz,
1962), pp. 198-199.
48
See document A/CN.4/L.118 and Add. I and 2 (footnote 43
above), part two, A, chap. II, para. 91 in fine.
165
diplomatic privileges and immunities. According to that
draft, the inviolability of premises occupied or used by a
mission should be respected and guaranteed by the host
State, "provided that notification of such occupation or
use had been previously given to the receiving State".49
At the ninth session of the Commission, Mr. Ago, noting
that it was the practice of the sending State to notify the
receiving State concerning the premises it would occupy,
suggested that inviolability might begin to operate from
the date on which notification by the sending State
reached the receiving State.50 The Commission did not
pronounce on that suggestion. The agreement concluded
between the United Nations and the United States in
1966, following the acquisition by the United Nations of
premises outside the Headquarters district as originally
defined,51 established the obligatory nature of notification both when the premises begin and when they cease
to be occupied. Article II of that agreement states:
Article II
The Secretary-General of the United Nations shall notify the Permanent Representative of the United States to the United Nations
immediately should any of the premises described in Article I, or any
part of such premises, cease to be used for offices by the Secretariat of
the United Nations. Such premises, or such part thereof, shall cease to
be a part of the Headquarters District from the date of such notification.
Article III of the same agreement reaffirms the obligatory
nature of the practice:
Article III
The Secretary-General of the United Nations shall notify the Permanent Representative of the United States to the United Nations
immediately of the termination of any subleases of parts of the premises
described in Article I and of the possession of such parts by the United
Nations. Such parts of such premises shall become a part of the Headquarters District from the date of such occupation.
103. The European Committee on Legal Co-operation,
in its report on the privileges and immunities of international organizations, was concerned solely with the
precise limits of the premises, which were to be recorded
in headquarters agreements and in agreements concerning the temporary occupation of premises.52
104. Generally speaking, therefore, it seems to be
acknowledged that the premises of international organizations, like diplomatic premises, are inviolable.
Inherent in that inviolability, as a natural consequence, is
exemption from any form of search, requisition, attachment, confiscation, expropriation and any other form of
coercion or interference, whether administrative, executive, judicial or legislative. No agent of the State's public
authority may enter the premises of an international
organization, as defined, unless intervention has been
requested or authorized by officials of the organization
empowered to make such request or grant such author-
49
Harvard Law School, Research in International Law. I. Diplomatic
Privileges and Immunities, Supplement to The American Journal of
International Law (Washington, D.C.), vol. 26 (1932), pp. 50-51; cited
in Cahier, op. cit. (footnote 47 above), pp. 200 and 216, and in Duffar,
op. cit. (footnote 35 above), p. 135.
50
See Yearbook . . . 1957, vol. I, p. 53, 394th meeting, para. 25.
51
See document A/CN.4/L.118 and Add.l and 2 (footnote 4.
above), part two, A, chap. II, para. 100.
52
See footnote 44 above.
166
Documents of the forty-first session
ization, or the relevant basic legal text waives the principle of inviolability.53
105. The practice of States, of the United Nations and
of the specialized agencies and IAEA reflects the doctrine
that inviolability not only means that States must refrain
from entering the premises of an international organization but also implies the obligation of protecting them
from any threat or disturbance from the outside that
might affect them. The State is legally bound to extend
special protection to the premises of international organizations, as it must to diplomatic premises. Inviolability of the premises obliges the State not only to abstain
from certain acts but also to afford active protection of
the premises. These principles have been recognized in
many headquarters agreements or have been considered
obligatory by States; thus, for example, the agreements
concluded between the United Nations and the United
States of America54 (art. VI, sect. 16); the United Nations
and France55 (sect. II); ECAFE and Thailand56 (art. Ill,
sect. 5); ECA and Ethiopia57 (art. Ill, sect. 4); FAO and
Italy58 (art. IV, sect. 8); FAO and Egypt59 (art. II, sect. 4
(c)); FAO and Thailand60 (art. V, sect. 7); UNESCO and
Cuba61 (sect. B); UNESCO and France62 (art. 7).
106. For its part, the Swiss Federal Government has
stated that the protection of the premises of an international organization represents an obligation for Switzerland, even when headquarters agreements concluded by
the Confederation contain no particular provision to this
effect.63 The State must therefore take the necessary
measures to protect the premises of the international
organization on the outside and, where appropriate, on
the inside. In the latter case, as we have said, intervention
must be requested or authorized by an official of the
organization concerned. Article 7 of the headquarters
agreement between UNESCO and France64 expressly
states this principle.
107. When inviolability is being granted to the international organization in furtherance of the performance of
its functions, it is logical that, in exchange, States should
not allow premises occupied by an international organization to be transformed into territory of asylum. The
headquarters agreement concluded between the United
53
See document A/CN.4/L.118 and Add.l and 2 (footnote 43
above), part two, A, chap. II, para. 109.
54
See footnote 38 above.
55
Exchange of letters constituting the agreement of 17 August 1951
relating to the holding of the sixth session of the General Assembly in
Paris (United Nations, Treaty Series, vol. 122, p. 191).
56
Agreement of 26 May 1954 (ibid., vol. 260, p. 35).
57
Agreement of 18 June 1958 (ibid., vol. 317, p. 101).
58
See footnote 29 above.
59
Agreement of 17 August 1952 (see United Nations, Legislative
Texts ... (footnote 29 above), p. 212).
60
Agreement of 6 February 1957 (ibid., p. 220).
61
Exchange of letters of 30 August and 9 September 1949 (ibid.,
p. 230).
62
See footnote 20 above.
63
See Annuaire suisse de droit international, 1969-1970 (Zurich), vol.
26, pp. 170-171; also P. Cahier, Etude des accords de siege conclus entre
les organisations Internationales el les Etats oil elles resident (Milan,
Giuffre, 1959) (thesis), pp. 259-260.
64
See footnote 20 above.
Nations and the United States65 contains an express
provision on this subject in article III, section 9 (b):
(b) Without prejudice to the provisions of the General Convention
or Article IV of this agreement, the United Nations shall prevent the
headquarters district from becoming a refuge either for persons who are
avoiding arrest under the federal, state, or local law of the United States
or are required by the Government of the United States for extradition
to another country, or for persons who are endeavoring to avoid service
of legal process.
A similar provision is to be found in article 6, paragraph
3, of the headquarters agreement between UNESCO and
France.
108. According to the replies to the questionnaire sent
out by the Legal Counsel of the United Nations to the
specialized agencies and IAEA, the inviolability of the
premises of those organizations has, in general, been
recognized. The same is true of the United Nations. The
specialized agencies and IAEA have for the most part
remained immune from search and from any other form
of interference.66
109. It is clear, then, that most, if not all, of the currently
existing international organizations, as defined, enjoy
absolute immunity from legal process in respect of their
property. The General Conventions of 1946 and 1947, in
article II and article III, respectively, establish the
immunity from legal process in respect of property and
assets of the international organizations to which they
relate. Those texts confer absolute immunity on the
property and assets of the said organizations. The competence of the national judge depends on the express
waiver of the organization, which cannot, in any event,
be of a general nature or extend to any measure of
execution.
110. Contrary to what occurs in the case of States
(where the extension of immunity is in general determined by case-law), when it comes to international organizations, any limitations to which immunity is or has
been made subject derive from a special provision,
because immunity is an absolute principle. As shown
above, the constituent instruments of organizations of an
economic or financial character, such as IBRD, IDA
and IFC, provide for the competence of the national
judge, in accordance with the conditions established in
those instruments. Provision has also been made for the
competence of national judges, not without some reticence on the part of international organizations, in the
case of lawsuits of lesser importance or accidents caused
by vehicles belonging to an international organization.
111. The European Committee on Legal Co-operation
has concluded that, even though a degree of immunity
from legal process is necessary in the case of international
organizations, such immunity should be subject to
certain exceptions and guarantees. The Committee has
enumerated a number of areas in which there should be
such exceptions, as follows:
{a) Commercial or financial activities carried out by
international organizations;
(b) The participation of international organizations in
corporations, associations or other legal entities;
(c) Patents acquired by international organizations;
65
See footnote 38 above.
See document A/CN.4/L.383 and Add. 1-3 (footnote 23 above),
part B, chap. II, sect. 9, paras. 58 et seq.
66
Relations between States and international organizations (second part of the topic)
(d) Rights in rem to buildings belonging to international organizations or claimed by them, or the use they
make of such buildings;
(e) Successions, bequests and gifts benefiting international organizations;
( / ) Damage resulting from an accident caused by a
motor vehicle or other means of transport belonging to
an international organization or being driven on its
behalf; and
(g) Counter-claims arising out of the legal relationship
or facts on which any claims of organizations may be
based.67
112. The principle of the immunity of the property and
assets used by an international organization to perform
its functions and carry out its official activities is
accepted, as we have seen, by authors of legal works and
by State practice and is fully reflected in many bilateral,
multilateral and even unilateral legal instruments currently in force. The principle implies immunity from
search, requisition, confiscation, expropriation or any
other form of administrative or judicial coercion or interference, even though such immunity may not appear
essential in the case of all international organizations.
Expropriation is, however, allowed as an exception to the
principle of immunity, should it be necessary for
purposes of public utility. In such a case, the organization should be warned and consulted before the measure
is executed and should receive adequate and fair compensation.
113. The autonomy and independence of international
organizations would be ineffectual if they were not empowered to manage and mobilize freely, without let or
hindrance, the funds and assets placed at their disposal,
so that they may perform satisfactorily the functions
entrusted to them.
114. Some authors maintain that while in general the
right of international organizations to transfer funds
67
Council of Europe, op. cit. (footnote 11 above), p. 24, para. 33.
VIII.
167
without being subjected to normal exchange controls is
admissible, that right should nevertheless be limited to
transfers between member States. On the other hand,
there should be no restriction with regard to the currencies in which those funds can be held or transferred.
115. In short, both the legal literature and the practice
of States in their relations with international organizations accept that international organizations should be
authorized to hold and transfer funds and currencies,
operate bank accounts in any currency and convert all
currencies in their possession without being subjected to
any form of financial control, regulation or moratorium.
It is obvious that so considerable a privilege may not
seem indispensable to international organizations whose
budget is small and whose funds are mostly used in the
headquarters country.
116. The General Conventions of 1946 and 1947, of
course, both have provisions on this point. The 1947
Convention provides, in article III, section 7:
Section 7
Without being restricted by financial controls, regulations or moratoria of any kind:
(a) The specialized agencies may hold funds, gold or currency of any
kind and operate accounts in any currency;
(b) The specialized agencies may freely transfer their funds, gold or
currency from one country to another or within any country and
convert any currency held by them into any other currency.
A similar provision is generally found in the headquarters agreements, for example in the agreement
between UNESCO and France (art. 17).68 In all cases,
there is a proviso concerning the exercise of the rights
accorded, to the effect that the organization concerned is
to pay due regard to any representations made by the
Government of any member State "in so far as it
considers that these can be complied with without prejudice to its own interests".
68
See footnote 20 above.
Part III of the draft articles: articles 7 to 11 submitted by the Special Rapporteur
117. As a corollary to what has been said up to now, the
Special Rapporteur suggests that part III of the draft
articles should read as follows:
PART III.
PROPERTY, FUNDS AND ASSETS
Article 7
International organizations, their property, funds and
assets, wherever located and by whomsoever held, shall
enjoy immunity from every form of legal process except in
so far as in any particular case they have expressly waived
their immunity. It is, however, understood that no waiver of
immunity shall extend to any measure of execution or
coercion.
Article 8
1. The premises of international organizations used
solely for the performance of their official functions shall
be inviolable. The property, funds and assets of international organizations, wherever located and by whomsoever
held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference or
coercion, whether by executive, administrative, judicial or
legislative action.
168
Documents of the forty-first session
2. International organizations shall notify the host
State of the location and description of the premises and
the date on which occupation begins. They shall also notify
the host State of the vacation of premises and the date of
such vacation.
3. The dates of the notification provided for in paragraph 2 of this article, except where otherwise agreed by
the parties concerned, shall determine when the enjoyment
of the inviolability of the premises, as provided for in
paragraph 1 of this article, begins and ends.
Article 9
Without prejudice to the provisions of the present
articles [Convention], international organizations shall not
allow their headquarters to serve as a refuge for persons
trying to evade arrest under the legal provisions of the host
country, or sought by the authorities of that country with
a view to the execution of a judicial decision, or wanted on
account of flagrans crimen, or against whom a court order
or deportation order has been issued by the authorities of
the host country.
Article 10
Without being restricted by controls, inspections, regu-
lations or moratoria of any kind:
(a) International organizations may hold funds, gold or
currency of any kind and operate bank accounts in any
currency;
(b) International organizations may freely transfer their
funds, gold or currency from one country to another or
within any country and convert any currency held by them
into any other currency;
(c) International organizations shall, in exercising their
rights under subparagraphs (a) and (b) of this article, pay
due regard to any representations made by the Government
of any member State party to the present articles |Convention] in so far as it is considered that effect can be given to
such representations without detriment to their own
interests.
Article 11
Notwithstanding the provisions of article 10, subparagraphs (a) and (A), the scope of the rights accorded
may be limited, in the light of the functional requirements
of the organization in question, by mutual agreement of the
parties concerned.